Mississippi’s 15-week abortion ban wasn’t on trial Wednesday. Roe v. Wade was.
A lot can happen between oral arguments and the court issuing its decision six months from now, but there was no silver lining today for abortion rights advocates.
The state was candid, with Mississippi Solicitor General Scott Stewart goading the majority-conservative Supreme Court to not just scooch up the viability line from around 24 weeks to 15, but to overturn Roe v. Wade and Casey v. Planned Parenthood altogether.
The conservative justices on the bench, including its two newest members, Brett Kavanaugh and Amy Coney Barrett, were highly amenable to ditching the court’s own precedent. The expectation beforehand that the robust six-justice conservative majority might tiptoe their way to overturning Roe quickly proved wrong. There was little in the way of window-dressing, or careful parsing of ways in which the court might inch away from Roe.
After 45 years of fulminating that Roe was bad law badly decided, the conservative legal movement finally got its chance to roll it back. The conservative justices responded with aplomb, bringing up Plessy v. Ferguson and other dark marks on the court’s history that were later overturned.
Chief Justice John Roberts took to the task the most meekly, dithering over a hypothetical 15-week viability line, while the others raced to tear down the precedent.
Justice Clarence Thomas repeatedly tried to muddy the waters on where the basis of Roe’s protections come from, intimating that its lack of enumeration in the Constitution invalidates abortion access as a right.
“What is confusing is that if we were talking about the 2nd Amendment, I know exactly what we’re talking about. If we’re talking about 4th Amendment, I know what we’re talking about because it’s written. It’s there,” he said.
Kavanaugh too gravitated towards the suppposed silence of the constitution, regurgitating the state’s arguments that “the constitution is neither pro-life nor pro-choice on the question of abortion” and leaves the decision up to the people.
He bundled the stripping away of a constitutional right in some “it wouldn’t be so bad” hand-waving.
“If you were to prevail, the states, a majority of states or states still could — and presumably would continue to freely allow abortion,” he lobbed to Mississippi’s solicitor general.
Kavanaugh and Barrett teamed up at different points throughout the oral arguments to say that actually, overturning precedent is a good thing! They pointed to cases like Plessy, which upheld state-sanctioned segregation.
Justice Samuel Alito reiterated the state’s argument, roundly rejected by the respondents, that there is considerable doubt about the “personhood” of the fetus, when it can feel pain. In amicus briefs, groups like the American Medical Association pushed back on that doubt, saying that science still holds unambiguously that a fetus has not developed the structures necessary to feel pain pre-viability.
“There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics,” Alito said. “But viability is dependent on medical technology and medical practice — it has changed, it may continue to change.”
In perhaps his most egregious turn, Kavanaugh again assumed the role of mouthpiece for the state, berating Julie Rikelman, attorney for the abortion clinic, for forcing the court to make a big decision — despite the fact that the petitioners were the ones asking for a judgment on abortion precedent when they appealed the case to the high court in the first place.
“The other side would say that the core problem here is that the court has been forced, by the position you’re taking and by the cases, to pick sides on the most contentious social debate in American life,” he said. “They are saying here that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides.”
Abortion rights advocates have long warned that there is no path for the court to uphold both Roe and the Mississippi ban. The conservative justices seemed inclined to agree, making no effort to couch the case as anything but a challenge to Roe, and demonstrating few scruples about overturning the court’s own precedent.